THANGASAMY versus THE STATE OF TAMIL NADU

[2019] 4 S.C.R. 600

[2019] 4 S.C.R.

THANGASAMY

THE STATE OF TAMIL NADU

(Criminal Appeal No. 698 of 2010)

FEBRUARY 20, 2019

[ABHAY MANOHAR SAPRE ANDDINESH MAHESHWARI, JJ.]

Penal Code, 1860:

Css. 304A, 337 and 279 – Negligent and rash driving –Resulting in death of four and injury to three persons – Trial Courtconvicted the accused u/ss. 279, 337 (3 counts) and 304A (4 counts)and sentenced him to four months imprisonment for offenceu/s. 304A imposed fine of Rs.200/- for offence u/s. 279 and ofRs.100/- for the offence u/s. 337 – Appellate Court as well asDRevision Court upheld the conviction and sentence – On appeal,held: The courts below rightly concluded that the accident occurreddue to rash and negligent driving – No case is made out forreducing the punishment, as Trial Court has already beenconsiderate in awarding the punishment.

Dismissing the appeal, the Court

HELD: 1.1 The suggestion that the accident in questionoccurred for the fault of the on-coming vehicle from the oppositedirection has been rejected with reference to the evidence onrecord wherein the witness, including the injured persons,Funiformly stated that the accident occurred for rash andnegligent driving of the offending vehicle by the appellant. So farthe question of identity of the appellant as driver of the offendingbus is concerned, the trial court, the appellate court and then theHigh Court have found the fact duly proved with reference to theGoverwhelming evidence on record, including the testimony ofPW1 to PW5. [Paras 11 and 12] [605-E-F; 606-B]

1.2 There is no infirmity in the appreciation of evidence bythe sub-ordinate courts and by the High Court, who haveconcurrently reached to the definite conclusion that the accident

occurred for rash and negligent driving of the vehicle by theappellant that resulted in the death of four persons apart fromcausing injuries to three. The devastation in terms of casualtiesand injuries, as brought about by the appellant, was bound toresult in his conviction for the offences under Sections 304-AIPC (four counts) and 337 IPC (three counts). [Para 13][606-C-D]

2. No case for reducing the punishment awarded to theappellant is made out. For rash and negligent driving by theappellant, as many as four persons died and three other sustainedinjuries. Yet, the trial court had been considerate in awarding thesentence only of four months’ imprisonment for each count ofthe offence under Section 304-A IPC and only of fine of Rs. 100for each count of the offence under Section 337 IPC andRs. 200/- for the offence under Section 279 IPC. The punishmentawarded in this matter had been rather on the lower side.[Para 17] [609-C-D]

Alister Anthony Pareira v. State of Maharashtra(2012) 2 SCC 648 :[2012] 1 SCR 145; State of M.P. v.Ghansyam Singh (2003) 8 SCC 13 : [2003] 3 Suppl.SCR 618; Dalbir Singh v. State of Haryana (2000) 5SCC 82 : [2000] 3 SCR 1000;State of Karnataka v.Muralidhar(2009) 4 SCC 463 : [2009] 4 SCR 400 –relied on.

Case Law Reference

CRIMINAL APPELLATE JURISDICTION : Criminal AppealNo. 698 of 2010.

From the Judgment and Order dated 07.01.2009 of the MaduraiBench of the Madras High Court in Criminal R.C. No. 232 of 2006.

AMs.Babita Sant, Ms.Malini Poduval, Advs. for the Appellant.M.Yogesh Kanna, Adv. for the Respondent.

The Judgment of the Court was delivered by

DINESH MAHESHWARI, J. 1. In this appeal, the appellant-Baccused has called in question the judgment and order dated 07.01.2009in Crl. R.C. No. 232 of 2006 whereby, the Madras High Court at itsMadurai Bench, while dismissing the criminal revision petition, has upheldthe conviction of the appellant for offences under Sections 279, 337(3counts) and 304-A (4 counts) of the Indian Penal Code (‘IPC’).

2. Put in brief, the accusation against the appellant had been thaton 24.02.2001 at about 07:15 p.m., while driving government passengerbus bearing registration No. TN-72-N-0891 in negligent manner, hecaused an accident near Korampallam on Tuticorin-Tirunelveli Main Road,which resulted in the death of four persons namely, Jayaraj, Muniasamy,Gopal and Dharma Nadar whereas three persons namely, Murugan,DSenthur Pandian and Krishnan were injured. For the incident in question,FIR came to be registered as Crime No. 70 of 2001; and after investigation,the accused was charge-sheeted for the offences as aforesaid.

3. In trial, the prosecution, inter alia, relied on the testimony ofPW-1 Chellathrai (the informant), who asserted that at the time of theEaccident, he was standing near Thangaiah STD booth and saw theaccused driving the offending vehicle in rash and negligent manner,without even blowing the horn; and having caused the accident whereby,four out of five persons, who were standing near the booth, came beneaththe vehicle and those four persons succumbed to their injuries whereas,Fthe fifth person was taken to the hospital. PW-2 Samadhana Raj, whohad cycle shop on Korampallam main road, corroborated the testimonyof PW-1 and stated that Dharamraj, Gopal, Jayraj etc. had come to hisshop to fix puncture and they were standing on the mud side of theroad when the vehicle in question came at fast speed from Tirunelveliand dashed against them; that TVS 50 vehicle also came under theGoffending vehicle; and that he helped the injured to reach the hospital.PW-3 Adhisaya Pandi, who was taking tea at nearby place, furthercorroborated the testimonies of PW-1 and PW-2. Moreover, PW-4Murugan, also victim of the accident, testified that while he was standingand talking to Muniasamy, Dharma, Senthur Pandian and Murugan, agovernment bus, which was over-speeding from the right side, causedH

the accident. This witness also stated that the driver of the bus left thevehicle and fled away from the scene of the accident. PW-5 SenthurPandian, the only surviving member of the five who came beneath thebus, testified in the same manner as PW-4. He, of course, stated in thecross examination that the driver of the offending bus having ran away,his identity was not known. However, in the examination-in-chief thiswitness stated thus: “The person who drove the bus is the accusedhere. He alighted and went away.” This witness also deposed in thecross-examination that lorry from the opposite direction of the buscame fast after overtaking bullock cart; and that southern side of theroad in question had slope and any vehicle taking to that side of theroad would turn upside down.

4. The accused-appellant attempted to suggest that there wasneither any oral evidence nor any documentary proof that he was drivingthe bus and had caused the accident; and that, since the driver of the busallegedly fled from the scene, his identification was matter of seriousdoubt.

5. In its order dated 24.09.2004 in C.C. No. 205 of 2001, onappreciation of evidence, the Trial Court rejected the contentions urgedon behalf of the accused and found it proved that he did cause theaccident which resulted in the death of four persons apart from causinginjuries to three. Accordingly, the Trial Court convicted and sentencedthe accused-appellant for the offences under Sections 279, 337 (3 counts)and 304-A (4 counts) in the following manner:

“14A. Finally, in the light of the evidence that was elicited inthe case and the documents marked and the material objectsproduced and after analysing the evidence, I have come tothe conclusion that the charges laid against he accused havebeen proved and hold him guilty under Sections 279, 337IPC (3 counts) and Section 304-A IPC (4 counts). Therefore,I impose fine of Rs. 200/- and in default one monthimprisonment for the offence under Section 279 IPC,Rs. 100/- for each count of the offence under Section 337IPC (3 counts) and in default one month imprisonment, fourmonths imprisonment for the offence under Section 304-A IPC(4 counts) for each count. I order that the accused will servethe sentences simultaneously. The total fine is Rs. 500/-”

6. The appeal preferred by the accused-appellant against thejudgment and order aforesaid, being Criminal Appeal No. 91 of 2004,was considered and dismissed by the Sessions Judge, Tuticorin in thejudgment dated 28.11.2005, after re-examination of the entire evidenceon record.

7. Against the judgment aforesaid, the accused-appellant filed arevision petition, being Crl.R.C. No. 232 of 2006, before the MadrasHigh Court, Madurai Bench which was also dismissed by the impugnedorder dated 07.01.2009. The High Court approved the conviction andsentencing of the appellant while observing as under:

“11. It has already been pointed out that due to accident fourpersons have passed away and three others have sustainedinjuries. Considering the nature of the accident and alsoconsidering that four persons have lost their lives, it isneedless to say that no leniency can be shown in awardingsentence against the revision petitioner/accused.

12. The courts below, after evaluating all the evidenceavailable on record, have rightly found that the accused hascommitted offences under Sections 279, 337 (3 counts) and304-A (4 counts) of the Indian Penal Code and in view of thediscussion made earlier, this court has not found even filmsyEground to impinge the concurrent judgments passed by thecourts below and altogether the present criminal revision casedeserves dismissal.”

8. Assailing the order aforesaid, learned counsel for the accused-appellant has contended that the orders passed by the High Court asFalso the sub-ordinate Courts are contrary to law and that the order ofconviction was passed while completely ignoring the portion of thestatements of PW-4 and PW-5 wherein, they had also deposed that theaccident had occurred due to rash and negligent driving of lorry comingfrom the opposite direction; and further that the bus had to swerve toGnorth instead of going south, since there was valley like slope on thesouthern plank of the road. Learned counsel has further submitted thatthe identity of the driver of the bus remained doubtful, as could be noticedfrom the testimony of prosecution witnesses, who admit that the driverof the bus had immediately fled from the scene of the accident and, forwant of identification parade, the testimony of the alleged eye-witnesses

could not have been relied upon as regards identity of the appellant. Thelearned counsel would submit that without strict proof of the identity ofthe bus driver, the appellant could not have been convicted in this case.The learned counsel would also pray for waiving of the sentence ofimprisonment with reference to the passage of time and thecircumstances of the case. Per contra, learned counsel for therespondent-State has duly supported the order impugned and hassubmitted that looking to the gravity of the offence, no case for anyinterference is made out.

9. Having given anxious consideration to the rival submissionsand having examined the record with reference to the law applicable,we find no reason to show any interference in this matter at the instanceof the appellant.

10. The grounds on which the appellant seeks exoneration in thiscase are twofold: one, that there was no evidence to prove that he wasdriving the bus involved in the accident; and second, in the alternative,that the incident in question took place for the reason of the vehicle fromthe opposite side approaching in negligent manner and if the driver ofthe bus in question had not taken to the northern side, the passengers ofthe bus would have been at the greater risk because of valley likeslope on the southern plank of the road. The submissions remain totallybereft of substance.

11. So far the question of identity of the appellant as driver of theoffending bus is concerned, the Trial Court, the Appellate Court andthen the High Court have found the fact duly proved with reference tothe overwhelming evidence on record, including the testimony of PW1to PW5. In this regard, the observations of the Appellate Court could beusefully taken note of as under:-

“... Regarding the submissions of the defence that theprosecution witnesses could not tell who actually was drivingthe bus because PWs 1 to 5 could not establish during theircross-examination that the accused was driver and that theyhad stated that the driver ran away and they did not knowwho was the driver. But the trial court which examined thissubmission in the light of the testimonies and other necessaryevidence, has held that PWs 1 to 5 had identified the accusedas the person who was driving the bus No. TN-72-0891 and

Athat the accused was present in the court and accordinglyidentified him. In view of this, this court rejects the argumentsof the appellant-accused.”

12. The suggestion that the accident in question occurred for thefault of the on-coming vehicle from the opposite direction has also beenBrejected with reference to the evidence on record wherein the witness,including the injured persons, uniformly stated that the accident occurredfor rash and negligent driving of the offending vehicle by the appellant.

13. The contentions urged before this Court essentially relate tothe appreciation of evidence. Having regard to the contentions urged,Cwe have examined the material placed on record in this appeal and findnothing of infirmity in the appreciation of evidence by the sub-ordinateCourts and by the High Court, who have concurrently reached to thedefinite conclusion that the accident occurred for rash and negligentdriving of the vehicle by the appellant that resulted in the death of fourpersons apart from causing injuries to three. The devastation in terms ofDcasualties and injuries, as brought about by the appellant, was bound toresult in his conviction for the offences under Sections 304-A IPC (fourcounts) and 337 IPC (three counts).14. So far the plea for reducing the period of imprisonment isconcerned, the same has only been noted to be rejected. In this regard,Ewe may usefully refer to the decision of this Court in Alister AnthonyPareira v. State of Maharashtra: (2012) 2 SCC 648wherein, theallegations against the appellant had been that while driving car indrunken condition, he ran over the pavement, killing 7 persons and causinginjuries to 8. He was charged for the offences under Sections 304 PartFII and 338 IPC; was ultimately convicted by the High Court underSections 304 Part II, 338 and 337 IPC; and was sentenced to 3 years’rigorous imprisonment with fine of Rs. 5 lakhs for the offence underSection 304 Part II IPC and to rigorous imprisonment for 1 year and for6 months respectively for the offences under Section 338 and 337 IPC.Apart from other contentions, one of the pleas before this Court wasGthat in view of fine and compensation already paid and willingness tomake further payment as also his age and family circumstances, theappellant may be released on probation or his sentence may be reducedto that already undergone. As regards this plea for modification ofsentence, this Court traversed through the principles of penology, asHenunciated in several of the past decisions including those inState of

M.P. v. Ghansyam Singh: (2003) 8 SCC 13 as also in Dalbir Singhv. State of Haryana: (2000) 5 SCC 82; and, while observing that thefacts and circumstances of the case show ‘a despicable aggravatedoffence warranting punishment proportionate to the crime’, this Courtfound no justification for extending the benefit of probation or for reductionof sentence. On the question of sentencing, this Court re-emphasised asfollows:-

“84. Sentencing is an important task in the matters of crime.One of the prime objectives of the criminal law is impositionof appropriate, adequate, just and proportionate sentencecommensurate with the nature and gravity of crime and themanner in which the crime is done. There is no straitjacketformula for sentencing an accused on proof of crime. Thecourts have evolved certain principles: the twin objective ofthe sentencing policy is deterrence and correction. Whatsentence would meet the ends of justice depends on the factsand circumstances of each case and the court must keep inmind the gravity of the crime, motive for the crime, nature ofthe offence and all other attendant circumstances.

85. The principle of proportionality in sentencing crime-doer is well entrenched in criminal jurisprudence. As matterof law, proportion between crime and punishment bears mostrelevant influence in determination of sentencing the crime-doer. The court has to take into consideration all aspectsincluding social interest and consciousness of the society foraward of appropriate sentence.’’

(underlining supplied for emphasis)

15. It shall also be apposite to recapitulate the observations of thisCourt in the case of Dalbir Singh (supra), guarding against leniency inrelation to the drivers found guilty of rash driving, in the following passages:

“1. When automobiles have become death traps any leniencyshown to drivers who are found guilty of rash driving wouldbe at the risk of further escalation of road accidents. All thosewho are manning the steering of automobiles, particularly

professional drivers, must be kept under constant remindersof their duty to adopt utmost care and also of the consequencesbefalling them in cases of dereliction. One of the most effectiveways of keeping such drivers under mental vigil is to maintaina deterrent element in sentencing sphere. Any latitude shownto them in that sphere would tempt them to make drivingfrivolous and frolic.

13. Bearing in mind the galloping trend in road accidents inIndia and the devastating consequences visiting the victimsand their families, criminal courts cannot treat the nature ofthe offence under Section 304-A IPC as attracting thebenevolent provisions of Section 4 of the PO Act. Whileconsidering the quantum of sentence to be imposed for theoffence of causing death by rash or negligent driving ofautomobiles, one of the prime considerations should bedeterrence. professional driver pedals the accelerator ofthe automobile almost throughout his working hours. He mustconstantly inform himself that he cannot afford to have asingle moment of laxity or inattentiveness when his leg is onthe pedal of vehicle in locomotion……. He must always keepin his mind the fear psyche that if he is convicted of the offencefor causing death of human being due to his callous drivingof vehicle he cannot escape from jail sentence. This is therole which the courts can play, particularly at the level oftrial courts, for lessening the high rate of motor accidentsdue to callous driving of automobiles.’’

(underlining supplied for emphasis)

16. We may also usefully refer to decision of this Court in thecase of State of Karnataka v. Muralidhar : (2009) 4 SCC 463,wherein, for rash and negligent driving, the respondent caused accidentresulting in demise of 16 year old boy while another person sustainedgrievous injuries. The Trial Court sentenced the respondent to six monthsimprisonment and to fine of Rs. 1,000/- with default stipulation foroffence under Section 338 IPC and to rigorous imprisonment for oneyear with fine of Rs. 5,000/- with default stipulation for the offence

under Section 304-A IPC. The appeal was dismissed by the SessionsCourt. However, the High Court waived custodial sentence and onlyfines were imposed. This Court referred to the principles related withthe offence under Section 304-A IPC as also the problems associatedwith the road traffic injuries and found absolutely no reason that theHigh Court waived the custodial sentence awarded to the respondent.Hence, the impugned judgment of the high Court was set aside and thatof the Trial Court restored.

17. In the light of the principles aforesaid, when we examine thefacts of the present case, it is noticed that for rash and negligent drivingby the appellant, as many as four persons died and three other sustainedinjuries. Yet, the Trial Court had been considerate in awarding the sentenceonly of four months’ imprisonment for each count of the offence underSection 304-A IPC and only of fine of Rs. 100 for each count of theoffence under Section 337 IPC and Rs. 200/- for the offence underSection 279 IPC. To say the least, the punishment awarded in this matterhad been rather on the lower side. There being no appeal for enhancementof sentence and looking to the time that has elapsed, we would not bemaking any further comment in the matter. Suffice it to conclude that nocase for reducing the punishment awarded to the appellant is made out.

18. Accordingly, and in view of the above, this appeal fails and is,therefore, dismissed. The appellant shall surrender before the Courtconcerned within period of 4 weeks from today and shall undergo theremaining part of the sentence. In case he fails to surrender within theperiod aforesaid, the Trial Court will take necessary steps to ensure thathe serves out the remaining part of sentence, of course, after dueadjustment of the period already undergone.

Kalpana K. Tripathy

Appeal dismissed.